First in Flight, Tops in Tech, Ascendant in UAS: Drones and North Carolina

The next time you go for a long hike in a national forest with no cell phone service, you might want to take a drone with you so that you can send for help when you break your leg, dehydrate, and need help.

While you, as a non-commercial drone “hobbyist” or “modeler,” might—emphasis on might—not violate any state or federal law if you were to send a drone to facilitate your rescue, the same cannot be said for many other potential drone operators.  In fact, law enforcement in some states may not be able to send a drone to determine your specific location or provide you with medication, food, or water—Hunger Games style—because such activity could violate nascent state laws and regulations governing “surveillance.”  And the FAA has made clear that commercial drone use is generally not permitted at this time.  While UAS enthusiasts might wish to believe that the FAA’s position is in flux after the National Transportation Safety Board (“NTSB”) determined that the FAA could not impose a $10,000 fine on an individual in connection with his use of a drone to take photos of, and subsequently sell them to, a college campus the FAA has appealed the NTSB decision signaling that, for now, the FAA is holding firm to the prohibition.

But while the FAA considers how to adopt an appropriate regulatory regime to govern the use of drones for commercial purposes, a great deal of activity is underway at the state and local level.  Numerous state legislatures across the country have been considering—and in some instances adopting—bills to limit the use of drones by law enforcement, government agencies, and other entities and persons.  North Carolina, for example, has convened a Study Committee to consider whether the time is ripe for UAS legislation and, if so, what the contours of such legislation should be.  In fact, draft legislation will be the subject of discussion at the Study Committee’s final meeting in April.

At a minimum, newsgatherers of all stripes need to be mindful of and involved in state and local legislative activity that may restrict the use of UAS for newsgathering purposes.  It is not hard to understand how and why the potential invasion of privacy implicated by overzealous UAS use would capture the imaginations of legislatures everywhere, but UAS use is in its infancy, and even well-meaning legislation could hinder development of UAS applications.

While it is relatively easy to understand the privacy concerns and potential Fourth Amendment implications of drone use by law enforcement and other government organizations, it is equally easy to understand the tremendous potential presented by commercial UAS use.  North Carolina has the potential to be the epicenter of the drone industry and could be viewed as a center for development of commercial (and non-commercial) drone applications and activities.  The NextGen Air Transportation Center is headquartered at North Carolina State University, North Carolina has a variety of climates and topography in which to test and study drone use, and the state is home to numerous technology companies.  Moreover, as recently as 2012, Raleigh was recognized as a top city for tech jobs.  Even though the FAA may have declined to select any location in North Carolina as a UAS test site, North Carolina is fertile ground for UAS ascension.  All UAS stakeholders need to pay attention now to ensure that North Carolina remains fertile ground for drone development.


Second Circuit Denies En Banc Review of Aereo Decision

The U.S. Court of Appeals for the Second Circuit denied today a petition for review, en banc, of an earlier decision by a three-judge panel of the Court that had ruled in favor of Aereo and against broadcasters in a case that originated in the Southern District of New York.

On April 1, 2013, the panel concluded in the case that Aereo’s service did not violate the broadcasters’ exclusive right to “publicly perform” their copyrighted television programs. Broadcasters asked the full Second Circuit Court to review that decision, but a majority of judges declined to rehear the case. Two judges issued a strong dissent, explaining that the panel decision had “already had a significant impact on the entertainment industry” because it threatened to undermine the retransmission consent regime vital to broadcast television.

Although the order denying rehearing is a disappointment for broadcasters, the decision is limited to broadcasters’ request for a preliminary injunction on the “public performance” issue. The case against Aereo is moving forward in the district court, where the parties have asked the court to rule on other aspects of the broadcasters’ copyright claims.

In a case involving a similar Internet streaming service, FilmOn X (originally “Aereokiller”), a federal district court in California ruled in favor of broadcasters and granted a preliminary injunction prohibiting the service from operating within the states encompassed by the Ninth Circuit. FilmOn X has appealed that decision to the Ninth Circuit, which is scheduled to hear argument on August 27th.

DOJ Leak Investigations Raise First Amendment Concerns

Many journalists, constitutional lawyers, and plain old average Americans have expressed alarm at recent revelations about the Obama Administration’s “unprecedented number of leak investigations.”  Perhaps most notably, James Goodale, who represented the New York Times in the Pentagon Papers case, has argued that the President is on his way to surpassing Richard Nixon as “the worst president ever on issues of national security and press freedom.”

Of primary concern appears to be the Justice Department’s investigation of Fox News reporter James Rosen.  As is well-known by now, the DOJ applied for and received a warrant to search Rosen’s personal emails in connection with a 2009 story about North Korea’s nuclear plans, describing Rosen in its search warrant application as “an aider and abettor and/or co-conspirator” who, along with former State Department arms expert Stephen Kim, allegedly violated the Espionage Act of 1917.  

In labeling Rosen a “co-conspirator,” the DOJ has advanced what some have called a “newfound” legal theory, which appears to be that a reporter who solicits and then publishes classified information can be the subject of a criminal prosecution.  In other words, investigative journalism into areas implicating national security might be unlawful.    

The DOJ hooks its legal argument on Section 793(d) of the Espionage Act of 1917, which states in part:  “Whoever, lawfully having possession of . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States . . . willfully communicates, delivers [or] transmits . . . the same” shall be fined or imprisoned.

Section 793(g) of that Act makes a conspiracy to violate Section 793(d) a violation as well.  The Administration’s theory in securing a warrant was that Rosen, in effectively working his source to obtain and then publish classified information, may have broken the law.  In other words, Section 793 applies to the press, notwithstanding the First Amendment.     

It’s a legal theory that has received widespread criticism.  In the 1971 Pentagon Papers case, two members of the Supreme Court, Justices William O. Douglas and Hugo L. Black, appeared to reject the argument that the Espionage Act applies to the press in their concurring opinion.  More recently, James Goodale has expressed his concern that the government “wants to criminalize the reporting of national security information.  This will stop reporters from asking for information that might be classified.  Leaks will stop and so will the free flow of information to the public.”  Numerous journalists and First Amendment watchdogs have decried the chilling effect the DOJ approach might have on national security reporters.

By contrast, however, noted First Amendment scholar Eugene Volokh sees a distinction between actively soliciting, obtaining and then revealing classified information, and the mere publishing of classified information by an “unconnected downstream recipient.”  Writes Volokh:

If there’s a First Amendment right to solicit, aid, and conspire in leaks of classified defense information, then there’d be such a right to solicit, aid, and conspire in leaks of tax return information, leaks of attorney-client confidences, leaks of psychotherapist-patient confidences, illegal interception of cell phone conversation, illegal break-ins into people’s computers, illegal rifling through people’s desks, and so on.

In the end, the Washington Post may have captured it best, in reporting on another recent leak investigation by the DOJ that involved searching the telephone records of the Associated Press—“the real scandal is what’s legal.”

Supreme Court Rejects Constitutional Challenge to Virginia Public Records Law

In a unanimous decision authored by Justice Alito, the U.S. Supreme Court today turned away a constitutional challenge to residency requirement of the Virginia Freedom of Information Act.  As we previously reported, the Court granted certiorari in a case brought by non-Virginians challenging that requirement under the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution.  The Court's decision today affirmed a ruling by Fourth Circuit.

Under Section 2.2-3704(A) of the Virginia FOIA statute,

all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.

Citizens of other states therefore do not have a general statutory right under the Act to access public records in Virginia.

The case was brought by citizens of Rhode Island and California.  One sought documents relating to a state agency's delay in filing a child support petition on his behalf.  His request was denied because he was not a Virginia citizen, though he later obtained most of the information he wanted from another agency.  The other petitioner operates a business that collects real estate tax records. His request for tax records from a particular county in Virginia was likewise denied because of his location.

The petitioners filed suit under Section 1983, contending that the residency requirement of the Virginia FOIA statute was unconstitutional.  The Court ultimately rejected those challenges.  With respect to the Privileges and Immunities Clause, the Court emphasized that its protection extends only to privileges and immunities that are "fundamental."  It went on to hold that the opportunity to pursue a business, the ability to own and transfer property, and the ability to access courts, while fundamental, were not abridged by the FOIA provision at issue.  As the Court held,

the [Privileges and Immunities] Clause does not require that a State tailor its every action to avoid any incidental effect on an out-of-state tradesman.

With respect to access to courts, the Court noted that all persons have access to judicial records in Virginia, as they do to information about himself or herself compiled by a Virginia agency. 

In addition, the Court held that access to public information, as a general matter, is not a fundamental matter protected by the Privileges and Immunities Clause.  The Court observed that it

has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.

In the absence of a long-standing right to access government documents writ large--a statutory right the Court pointed out is of fairly recent vintage--states are not required place citizens and non-citizens on equal footing under their public records laws.

Finally, with respect to the petitioners' dormant Commerce Clause argument, the Court found that nothing about the residency requirement in the Virginia FOIA statute was driven by a desire for economic protectionism.  Thus, the act did not regulate or burden interstate commerce in violation of the dormant Commerce Clause.

The upshot of this ruling is that the agencies of government in Virginia may continue to deny public records requests made by out-of-state persons or companies.  This result may lead to businesses in Virginia that specialize in making requests for non-Virginians.  Such a service may be of particular importance to out-of-state media organizations.

Kozinski Concurrence Questions Anti-SLAPP Application

We wrote recently about Sherrod v. Breitbart and O’Connor, the case argued last month in the D.C. Circuit that asks the Court to decide, among other questions, whether the District of Columbia’s anti-SLAPP statute should be applied in federal court.

The federal courts of appeals that have analyzed this question have all agreed that state anti-SLAPP statutes should be applied—at least to some degree—in federal court.  Those cases point to the Ninth Circuit’s 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Court held that California’s anti-SLAPP law was substantive, not procedural, and therefore should be applied by a federal court.

The Ninth Circuit recently issued an opinion in Makaeff v. Trump University that faithfully followed the Court’s precedent in Newsham, applying California’s anti-SLAPP statute to strike a counterclaim claim brought in federal court by Trump University against a woman who had filed a class-action claim against the program founded by Donald Trump to offer real estate investment seminars and training programs.

The bulk of the Court’s opinion focused on whether Trump University was a “public figure,” as required by California’s anti-SLAPP law.  The Court reversed the trial court, holding that it was a “limited public figure.”

Perhaps more interesting, however, were two concurrences written by Judge Kozinski and Judge Paez arguing that Newsham was wrongly decided and that state anti-SLAPP statutes should not apply in federal court.  Both concurrences argue that anti-SLAPP statutes are, in fact, largely procedural, and therefore should not be applied in federal court to supplant federal procedural rules.  Judge Kozinski, known for his sharp writing, called Newsham “a big mistake” that had been “foolishly followed” by the First Circuit and Fifth Circuit.  Judge Kozinski and Judge Paez clearly want the Ninth Circuit to re-examine Newsham en banc.

Judge Kozinski is an influential jurist across the country, and one cannot help but wonder whether his concurrence at this point was also intended to send a message to the D.C. Circuit as it considers Sherrod.  Of course, if the D.C. Circuit were to hold that D.C.’s law does not apply in federal court, there would be a circuit split on that question that might draw the attention of the Supreme Court.

A Salute to Anthony Lewis

We would be remiss if we failed to note the recent passing of Anthony Lewis, long-time columnist and Supreme Court reporter for the New York Times.  Lewis died on March 25 at the age of 85.

Lewis won two Pulitzer Prizes and is the author of two of the most widely read books on Supreme Court history – “Gideon’s Trumpet,” which detailed the Court’s 1963 decision in Gideon v. Wainwright guaranteeing legal representation to criminal defendants charged with serious crimes and “Make No Law,” which described the Court’s seminal 1964 decision in New York Times v. Sullivan.  Of course, the latter case is near and dear to the heart of any journalist or media lawyer.

Our colleague, Mark J. Prak, who served as an adjunct professor at Duke University’s Law School and Sanford School of Public Policy, notes that he required his students to read “Make No Law” for some 20 years.  His comments on the book are an appropriate elegy for Lewis:

“Make No Law” is the best book about the First Amendment ever written.  Period.

If you care about the First Amendment and have not read the book, you have some homework to do.  But it will be enjoyable homework.  Several generations of lawyers and students of the First Amendment have benefitted from Lewis’ fulsome description of the people, institutions, and societal forces at play in the story that gave rise to the great case.  Lewis’ detailed account of the Court’s work in Times v. Sullivan and his description of the metamorphosis of the First Amendment throughout the history of the Court is unparalleled and, above all, a great read.

Timing is Everything -- Breitbart Case Highlights Deadline Issue

Last week, we made our first foray into Sherrod v. Breitbart and O’Connor, which was argued in the D.C. Circuit several weeks ago and which will, hopefully, address the question whether the District of Columbia’s new anti-SLAPP statute should be applied by a federal court sitting in diversity.

In that post, we noted that the case also presented an interesting timeliness question.  In denying the defendants’ motion to dismiss brought pursuant to the D.C. anti-SLAPP statute, the district court held that the motion was not timely filed.  It is important to understand the unique timeline of this case to understand the court’s ruling.

The complaint was filed on February 11, 2011.  D.C.’s anti-SLAPP statute, which had been passed three months earlier, did not go into effect until March 31, 2011, after a mandatory review period by Congress.

Under typical circumstances, the rules require the defendants to either answer or move to dismiss the complaint within 21 days of being served.  Of course, most defendants seek, and are granted, additional time to respond to the complaint.  In this case, the defendants sought two extensions of their deadline to respond.  Both were granted by the court, with the consent of the plaintiff, pushing the defendants’ deadline to respond until April 18, 2011.

Importantly, the anti-SLAPP statute requires a defendant moving under the statute to file their motion within 45 days of service of the complaint.  In this case, 45 days fell on March 29, 2011, two days before the anti-SLAPP statute was in effect.  Thus, when the defendants did file their motion to dismiss on April 18, 2011, it was several weeks past the statutory deadline.  In denying the anti-SLAPP motion, the district court held that this was untimely, though the court did not address the fact that it had entered two orders granting the defendants extensions of their deadline to “answer, move or otherwise plead in response to Plaintiff’s Complaint.”

In their opening brief to the D.C. Circuit, the defendants argue that by granting these extensions, the court was, in effect, extending the deadline set out in the anti-SLAPP statute in addition to the deadline to respond under the Rules of Civil Procedure.  In any event, the defendants argue, the legislative history of the D.C. statute and case law from other courts indicate that litigants with pending cases can move pursuant to anti-SLAPP statutes that become effective during the course of the litigation.

In her responsive brief, the plaintiff notes that in seeking the extensions, the defendants did not notify either the plaintiff or the Court that it was seeking to extend the anti-SLAPP deadline, not just the deadline under the Rules of Civil Procedure.  Thus, the plaintiff asserts, the orders granting the extensions were not intended to extend the anti-SLAPP deadline.  This seems to be the view of the district court, as well.

No matter how the D.C. Circuit comes out on this question, this very unique case does raise an interesting practice point. It would seem that, if you are a litigant planning to take advantage of the protections of an anti-SLAPP statute, you would be well-advised to either respond within the deadlines set out in the statute or, when moving for an extension of time, specifically reference the anti-SLAPP statute to opposing counsel and the court.

D.C. Circuit Considers Anti-SLAPP Case

Until now, we have not yet waded into the legal and political morass that is Shirley Sherrod v. Andrew Breitbart and Larry O’Connor.  In case you have not picked up a newspaper in the past three years, this is a complaint brought by a former official with the U.S. Department of Agriculture against Andrew Breitbart and one of his employees.  The Washington Post described the case as follows:
Sherrod was ousted from her job as an Agriculture Department rural-development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, his employee Larry O’Connor and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm. . . .
The video on Breitbart’s Web site turned out to be edited, and when Sherrod’s full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but rather an attempt at telling a story of racial reconciliation. Sherrod received public apologies from the administration — including one from President Obama — and an offer to return to her job, which she declined.
Sherrod brought suit in the District of Columbia.  The defendants removed the case to federal court, and then filed a motion to dismiss pursuant to D.C.’s relatively new anti-SLAPP act, which had been passed just a year before and had gone into effect at the end of March 2011.  We first wrote about anti-SLAPP statutes in 2009.
In February 2012, the district court denied the motion to dismiss on a number of grounds, including: (1) the complaint had been filed before the effective date of D.C.’s anti-SLAPP law and could not be applied retroactively; (2) even if it could be applied retroactively, the law would then be considered procedural and therefore could not be applied by a federal court sitting in diversity; and (3) even if it could be applied in federal court, by seeking several extensions of their deadline to respond to the complaint, the defendants had missed the statutory deadline in which to file a motion under D.C.’s law (45 days).
The defendants appealed that decision to the United States Court of Appeals for the District of Columbia Circuit, arguing, among other things, that denial of an anti-SLAPP motion to dismiss is immediately appealable.  Oral argument in that appeal took place on March 15, 2013, and a decision is likely to be issued sometime this summer.
If the D.C. Circuit agrees that it has jurisdiction to hear this interlocutory appeal—meaning an appeal that comes before the final resolution of the case at the trial court level—and according to reports of oral argument that is no sure thing, the court will answer several critical questions of first impression about D.C.’s anti-SLAPP law.
Of primary importance to media defendants is whether a state (or District of Columbia) anti-SLAPP statute can be applied in federal court.  The general rule is that statutes or rules that are procedural (i.e., they govern how an action proceeds through the court system) are not applied by federal courts, but statutes or rules that are substantive (i.e., they govern the merits of the cause of action) are to be applied by federal courts.
This question is crucial, because if plaintiffs could avoid the effect of an anti-SLAPP statute by bringing their case in federal court (by either adding a federal cause of action or creating diversity among defendants), many might choose to do so.
A coalition of media organizations filed an amicus curiae brief in the D.C. Circuit urging the court to align itself with the First, Fifth, and Ninth Circuits, which have all held that anti-SLAPP statutes are substantive, and therefore should be applied by a federal court sitting in diversity.  Indeed, the amici asserted that every Circuit Court to examine the question has agreed that such statutes are substantive.
In the coming days, we will have another post about one of the other important questions raised by the Sherrod case—whether the defendants’ motion to dismiss was untimely.

Of course, we will keep you posted when the court issues its decision. 

Important N.C. Public Records Question Left Unanswered

The North Carolina Supreme Court last week split 3-3 on an appeal presenting important questions concerning the state’s Public Records Act, apparently leaving it for the General Assembly to close a gap in the law concerning the applicability of the records statute to campus police departments.

The case, Ochsner v. Elon University and North Carolina Attorney General Roy Cooper, presented, among other things, the question whether the campus police department of a private university is subject to the Public Records Act, where that department was certified and authorized pursuant to state law.

The Court of Appeals answered that question in the negative, affirming the trial court’s dismissal of a complaint brought by a reporter from Elon University’s campus television news program seeking access to a complete copy of an incident report generated by the campus police when it arrested a student in March 2010.  The campus police had refused to give the reporter the full incident report, instead turning over an arrest report and the first page of the incident report.

The Public Records Act, however, specifically makes public certain information concerning police investigations, including:

(1)  The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.

(2)  The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.

(3)  The circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.

            It so happens that this was exactly what the reporter requested from the campus police, a request the department refused.

In affirming the trial court’s dismissal, the Court of Appeals had held that even though state law gives police departments operated by private universities the power to arrest, the Public Records Act does not cover those departments.  The North Carolina Supreme Court agreed to hear the case, but split evenly, 3-3.  Justice Barbara Jackson had recused herself because the reporter, Nick Ochsner, had worked on her re-election campaign.  The split leaves the Court of Appeals’ decision intact but without any precedential value for future courts.

The gap in the law identified by this case appears to be the result of changes in the law surrounding the certification of campus police departments that were not carried through to the Public Records Act.  More specifically, when the statute certifying campus police departments changed in 2005, the new statutory cite was not added to the list of what constitutes a “public law enforcement agency” under the Public Records Act.

With the Supreme Court deadlocked on this issue, a legislative fix has been proposed in the General Assembly.  House Bill 142 would amend the law authorizing campus police departments to expressly make public the same information concerning police investigations that is public under the Public Records Act.

Supreme Court Agrees to Review Virginia Records Law

Last week, the United States Supreme Court agreed to hear an important case involving Virginia's public records law.  The case, McBurney v. Young, involves a challenge to a provision of the state law that says that "public records shall be open to inspection and copying by any citizens of the Commonwealth . . . " (emphasis added).  In other words, citizens of another state need not apply.

A challenge to this provision limiting the availability of public records to Virginia citizens was brought by, among other plaintiffs, a citizen of Rhode Island who used to live in Virginia and had his divorce and child custody case litigated in Virginia.  When McBurney's ex-wife defaulted on her child support obligations, McBurney submitted a public records request to the state Division of Child Support Enforcement for certain documents relating to his family's case.  The department denied his request, citing, among other things, that he was not a Virginia citizen.

McBurney challenged this basis in federal court, asserting that limiting the scope of the law to Virginia citizens violated the Privileges and Immunities Clause of the U.S. Constitution. 

Meanwhile, a second plaintiff -- a California resident operating a tax assessment records business that relied on access to Virgina records -- had brought a separate case challenging the same provisions. This plaintiff also asserted a P & I claim, but added a "dormant" Commerce Clause claim, asserting that the law improperly burdened interstate commerce.

As to the P & I claims, the district court held that no fundamental right was at issue, and therefore the P & I Clause was not violated. As to the Commerce Clause, the district court denied the claim, holding that the statute does not "implicate principles of economic protectionism" and therefore is constitutional.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision, and the plaintiffs sought Supreme Court review.

Seeking Supreme Court review is not without risk for media organizations.  After all, a ruling from the Supreme Court affirming the validity of Virginia's law might open the door to states across the country adding similar provisions to their public records laws, in hopes of limiting access.  Such a development would require out of state media organizations to ask a resident "proxy" to make a request on the organization's behalf.

We will keep you posted as the Supreme Court considers this case.